For months now, Michael Dean Smith said, he has feared his infant daughter will be hurt or killed in a drunk-driving related accident with the mother of his child behind the wheel.
Smith, 34, of Waynesville, shares joint custody of his now 15-month-old daughter with Valery Francis , who has primary physical custody. Going back to September, Smith said he warned Haywood County DSS that Francis would drive under the influence of alcohol with their daughter in the car.
Smith was not alone in this concern. A safety assessment form signed off by a Haywood County social worker in December checked a box stating that there had been a current, ongoing pattern of substance abuse leading directly to neglect and/or abuse of the child, referring specifically to Francis’ drinking.
Months passed by, during which Smith says Francis continued to drink and endanger their child. Then, his worst fears were realized.
Just after 2 a.m. on June 15, Francis wrecked her car in Madison County near Marshall and was charged by a State Highway Patrol officer with driving while impaired. A passenger under 18 years old was also in the car with her at the time of the accident, according to the charging document from the Madison County Courthouse. That passenger, Smith said, was their infant daughter.
Both Francis and her daughter survived the crash with non-life-threatening injuries, and Francis was arraigned on charges of reckless driving, driving left of center and having an open container of alcohol in the car.
Francis told CPP last week that she began voluntarily wearing a continuous alcohol-monitoring bracelet shortly after the wreck on advice from her attorney, and said she hadn’t drank since installing the bracelet three weeks ago.
Smith said his daughter wouldn’t have been in the wreck in the first place if Francis had previously been subject to continuous alcohol monitoring as a condition of custody. Under state law, these devices, which most often are used in the form of ankle bracelets, can be ordered by a judicial official to ensure compliance with child custody and visitation orders. However, they are rarely used in such cases, Carolina Public Press learned in its investigation.
Even as increasing numbers of North Carolina judicial officials and attorneys embrace the use of continuous alcohol monitoring in criminal contexts, uncertainty remains over how the technology can be implemented in matters of child custody.
Both the North Carolina Department of Health and Human Services and the Haywood County Department of Social Services told CPP they do not have the legal authority to use these tools, which have proven effective in reducing future alcohol-related incidents.
However, a top child welfare law expert has also told CPP that under existing law judicial officials do have the discretion to order the use of continuous alcohol monitoring in such cases.
What are CAM bracelets?
The North Carolina General Assembly passed a law in 2012 allowing the use of continuous alcohol monitoring systems as a condition for pretrial release or probation, to mitigate punishments for impaired driving offenses and to ensure compliance with child custody and visitation orders.
These systems, commonly referred to as CAM bracelets, fit around the ankle similar to GPS-tracking ankle monitors that are often used as a condition for bail or probation. CAM bracelets monitor the presence of alcohol through the skin by testing samples of sweat every 30 minutes.
SCRAM Systems, the Colorado-based company that produces the CAM bracelets most commonly used in North Carolina, relies on subcontractors to distribute and monitor CAM bracelets across the state. Each of the six SCRAM providers authorized in North Carolina can install and monitor CAM bracelets on referrals from state agencies.
Ray Murphy is the program manager at Tarheel Monitoring, a SCRAM provider based out of Wilmington. He’s worked for years to promote CAM bracelets to the local legal community, which has seen increased buy-in in recent years. In fact, many of the referrals he receives come from defense attorneys who want their clients to wear the bracelets before their cases go to trial in order to prove their sobriety in court.
Murphy told CPP that these types of referrals are the most common, followed by probation and parole referrals, followed by family court referrals.
Although CAM technology has been available in North Carolina for more than a decade, they have been used sparingly by judges and magistrates. The reluctance to order the use of CAM is two-pronged, sources told CPP.
First, the state’s judiciary and bar generally lack knowledge about CAM. Second, judges who are aware of the bracelets often shy away from them because of the costly fees placed on the wearer, about $75 to install and another $360 per month for monitoring.
However, the bracelets have proven effective at reducing recidivism in DWI offenders, and can become a popular tool when backed by state or local funding. This was most recently evidenced by a pilot program that supported the use of CAM bracelets in the westernmost reaches of the state.
During that year-long program, $45,735 of a Governor’s Highway Safety Program grant was used to pay the costs of CAM bracelets for 55 people convicted of alcohol-related offenses in the seven counties that make up the 43rd prosecutorial district.
Of those 55 people who were ordered to wear the bracelets for 60 days, 53 had no alcohol violations, one absconded and one tested positive for alcohol and later pleaded guilty.
Jason Arnold , the chief assistant district attorney for the district, was pleased with those numbers.
“I didn’t think we would be this successful, I really didn’t,” Arnold said.
The pilot program ended in February, along with the funding for CAM bracelets in those seven counties. Still, the program was such a hit that judges in the district are continuing to order CAM bracelets as an alternative to incarceration or other interventions like ignition interlock devices.
The Waynesville Police Department in Haywood County has continued to fund CAM bracelets through its ABC revenue from liquor sales, the Mountaineer newspaper reported.
Governor’s Highway Safety Program director Mark Ezzell told CPP he is looking into how funding CAM bracelets can be incorporated into the state’s Booze It & Lose It campaign.
Question of use by DSS remains
Although state law permits CAM bracelets to be used as part of child custody orders or conditions of visitation, some DSS agencies have been reluctant to use them in the absence of specific laws or directives on their use.
There’s no mention of continuous alcohol monitoring in the juvenile code, Chapter 7B, of the state’s general statutes — the body of law that DSS operates under. The 2012 law that authorized the use of continuous alcohol monitoring in custody cases falls under civil law.
Murphy of Tarheel Monitoring told CPP that at least “once or twice” he’s installed CAM bracelets and reported directly back to New Hanover DSS. The agency, headquartered in Wilmington, did not respond when asked to confirm their use of continuous alcohol monitoring.
Likewise, the NC Department of Health and Human Services, which houses DSS, did not confirm whether CAM bracelets have ever been used by a DSS agency as part of a requirement for a parent or guardian.
When asked whether the nonmention of continuous alcohol monitoring in the juvenile code meant that DSS could not petition for the use of CAM bracelets, a DHHS spokesperson avoided answering the question.
“There is no mention of CAM bracelets anywhere in Chapter 7B,” communications officer Kelly Haight Connor said in an email.
Haywood County’s stance on the issue seems to align with that of the state.
“County Social Services agencies can’t currently use CAM bracelets in court,” public information officer Dillon Huffman told CPP in an email. “The law would need to change to allow this. Additionally, new funding would be needed to support these devices. More research is required at the state level to understand how this implementation would work.”
However, Sara DePasquale , a professor at the UNC School of Government and an expert in child welfare law, disagreed with the notion that judicial officials in these contexts couldn’t order the use of a CAM bracelet.
“If a child has been abused, neglected, or dependent, the court has authority in its dispositional orders to order the parent, guardian, custodian, or caretaker to ‘(t)ake appropriate steps to remedy conditions in the home that led to or contributed to the juvenile’s adjudication or to the court’s decision to remove custody of the juvenile from the parent, guardian, custodian, or caretaker,’” DePasquale said in am email, citing language lifted directly from Chapter 7B.
“Based on the broad language in the statute, so long as there is a nexus between the order for CAM and the reason for the child’s removal or adjudication, the judge would be acting within their discretion.”
Advocates told CPP on Sunday that they plan to seek new legislation that would clarify the issue and clearly allow the broader use of CAM bracelets by amending Chapter 7B. The earliest such a bill could be introduced would be during the 2025 long session, which starts in January.
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